Unfair Dismissal – What is the Duty to Mitigate?

If you succeed in a claim of Unfair Dismissal, the Tribunal will make a Compensatory Award to compensate you for your loss of earnings etc from the date of dismissal until the date that you secure suitable alternative employment.

The Tribunal will expect you to be looking for another job, and this is the duty to mitigate your losses. You have to give credit for earnings in mitigation. If you do not do so, the Tribunal may reduce the compensatory award

In Edward v Tavistock -v- Portman NHS Trust 2022, the Employment Appeals Tribunal issued a reminder concerning the principles of mitigation.

1. The burden of proof is on the Respondent at all times; so if the employer wants to argue that the Claimant has not taken sufficient steps to find suitable alternative employment, it has to introduce evidence to demonstrate that
2. The tribunal should consider what steps was it unreasonable for the claimant not to have taken. Such steps might include making job applications each week, or checking certain job websites on a regular basis.
3. The Tribunal should then consider whether those steps have produced an alternative income. In othr words, would the Claimant have found suitable alternative employment more quickly?
4. The Tribunal should then consider what amount of alternative income the Claimant would have earned? This might include either earnings in a new permanent role, or earnings on temping or consultancy basis
5. The tribunal should make a finding based on a broad evaluation of all the available evidence.

Claimants would do well to keep a detailed record of all steps taken by them to find suitable alternative employment on a week by week basis. Respondents however, should consider what vacancies they say the Claimant could have applied for, and gather evidence of any such vacancies.

With thanks to Daniel Barnett for news of this decision.